Reading about two free speech cases now before the Supreme Court, I found myself thinking of Cardinal Newman. I’ll get to Cardinal Newman in a minute, but first let me say a word about those cases pending in the court.
The basic issue in FCC v. Fox Television Stations and FCC v. ABC is the authority of the Federal Communications Commission to bar obscenity and nudity from broadcast television and fine broadcasters who violate the ban. In a decision back in 1978, the Supreme Court upheld the FCC. Now the networks want to change that, and they have the support of decisions from the U.S. 2nd Circuit Court of Appeals in New York.
Note that what’s in question here is broadcast TV—the stuff you get without paying extra. Cable TV and the Internet aren’t involved. Those are places where anything goes, and no one proposes to do anything about that. To be sure, someone looking at broadcast television these days might reasonably ask whether FCC regulation made any significant difference there either, but the networks are paying lawyers good money anyway to argue regulation is an offense against the First and Fifth Amendments.
The Supreme Court heard oral arguments in the two cases in early January. Its decision is expected soon.
Now, what about Cardinal Newman? In his famous 1875 Letter to the Duke of Norfolk, perhaps the finest exposition of the Catholic view of conscience ever written, Newman contrasted authentic conscience (“the voice of God”) with a “counterfeit” version prevailing in his day. This he summed up as follows:
“When men advocate the rights of conscience, they in no sense mean the rights of the creator nor the duty to him, in thought and deed, of the creature; but the right of thinking, speaking, writing, and acting according to their judgment or their humor, without any thought of God at all….
“They do not even pretend to go by any moral rule, but they demand what they think is an Englishman’s prerogative: for each to be his own master in all things and to profess what he pleases, asking no one’s leave and accounting priest or preacher, speaker or writer unutterably impertinent who dares say a word against his going to perdition…in his own way.”
Substitute “American” for “Englishman” and you have a good account of the principle of radical libertarianism underlying virtually any attempt, however modest, to regulate virtually any form of expression in the United States today. The result, naturally, is the ongoing pollution of our shared social environment in its aesthetic, psychological, and moral dimensions—at enormous cost to us all.
The conventional libertarian argument in favor of absolutizing the right of expression is that, apart from a few isolated exceptions, nobody gets hurt by letting people express themselves. But that is simply untrue. “Men are qualified for civil liberty,” Edmund Burke pointed out, “in exact proportion to their disposition to put moral chains on their own appetites.” Libertarianism is the ideology of unchained appetite, and as such it erodes the foundation that underlies liberty’s responsible use.
Obviously the regulation of expression is something that must be done with extreme care to protect the very real claims of free expression. In other words, it’s a balancing act, in which society is always at risk of tipping too far in one direction or the other, toward libertarianism or repression as the case may be. I wish the Supreme Court well in its latest wrestling with this challenge. John Henry Newman would understand.